Full Opinion (html_with_citations)

                                     In The

                               Court of Appeals

                   Ninth District of Texas at Beaumont

                             __________________

                             NO. 09-23-00324-CV
                             __________________


                       IN RE LONNIE KADE WELSH

__________________________________________________________________

                          Original Proceeding
          435th District Court of Montgomery County, Texas
                   Trial Cause No. 15-01-00659-CV
__________________________________________________________________

                         MEMORANDUM OPINION

      Lonnie Kade Welsh, who is civilly committed to treatment as a sexually

violent predator, filed a petition for mandamus seeking relief from an order dated

June 13, 2023, signed by the acting local administrative judge of Montgomery

County, Texas. 1 In the June 2023 order, the acting administrative judge denied

Welsh’s request to file a writ of mandamus, which argued that the visiting judge



      1Welsh was found to be a sexually violent predator following a trial before a

jury in a civil commitment proceeding in October 2015. See In re Welsh, No. 09-15-
00498-CV,
2016 Tex. App. LEXIS 9325
, at *1 (Tex. App.—Beaumont Aug. 25,
2016, pet. denied) (mem. op.).
                                         1
assigned to preside over the 435th District Court had abused his discretion when he

denied Welsh’s request to conduct a hearing on his request to determine whether he

was entitled to be released from the conditions of his civil commitment, a petition

we have determined amounted to an unauthorized petition for release under section

841.123 of the Texas Health and Safety Code. 2

      The record shows that Welsh is a vexatious litigant and for that reason is

subject to a prefiling order, an order that prohibits him from proceeding in this Court

pro se on the petition that he filed in this Court without obtaining the permission of

the appropriate local administrative judge. 3 At issue here is the ruling of the acting

local administrative judge denying Welsh’s request to file a petition for mandamus,

the petition he filed challenging the ruling of the visiting judge assigned to the 435th

District Court on his unauthorized petition for release. In the petition for

unauthorized release, Welsh claimed he was entitled to an evidentiary hearing to

determine whether his behavioral abnormality has changed to the extent that he is

no longer likely to engage in a predatory act of sexual violence. 4 Because Welsh

hasn’t shown he is entitled to the relief he seeks, we deny his petition. 5


      2See
Tex. Civ. Prac. & Rem. Code Ann. § 841.123
(b) (requiring the trial court

to review and issue a ruling on a sexually violent predator’s unauthorized petition
for release). Welsh claimed he was instituting the biennial review process when he
filed his petition, but we disagree.
       3Id. § 11.101(a).
       4See id. § 841.123(c)(1).
       5See Tex. R. App. P. 52.8(a).

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      Before explaining why we have concluded that Welsh’s petition lacks merit,

we address why we haven’t simply dismissed his petition because Welsh didn’t file

it “not later than the 30th day after the date” the acting administrative judge denied

Welsh’s petition for mandamus, as required by the rules that apply to vexatious

litigants. 6 On June 13, 2023, the acting administrative judge denied Welsh’s petition

for mandamus. Welsh didn’t file his petition for mandamus in the Court of Appeals

complaining about the administrative judge’s ruling until October 13, 2023.

According to Welsh, an official’s mistake—that the court’s clerk sent the order

denying his petition for mandamus to his former attorney by mail instead of sending

it to him—justifies tolling this statutory thirty-day period. Welsh argues he should

be excused from complying with this thirty-day filing period because he didn’t

receive the local administrative judge’s order by mail.

      The record shows that within 90 days of June 13, Welsh notified the trial court

that he had not received the June 13 order. Yet in his petition, Welsh has never stated

when he learned that the trial court signed the June 13 order. The record also doesn’t

show that Welsh ever asked the trial court to determine the date on which he acquired

actual notice of when the trial court signed the June 13 order. 7 Thus, the information




      6See
Tex. Civ. Prac. & Rem. Code Ann. § 11.102
(f).
      7See Tex. R. App. P. 4.2.

                                          3
Welsh included in his petition is insufficient to show that the statutory thirty-day

filing period should be tolled.

      But if the thirty-day period were to be tolled, Welsh could still not meet his

burden to establish that the local administrative judge abused its discretion in

denying his petition for mandamus. That’s because contrary to Welsh’s argument,

the health professional that Welsh relied on to support his unauthorized petition for

release doesn’t create a fact issue on whether Welsh is no longer likely to commit a

predatory act of sexual violence.

      In the petition for mandamus Welsh filed in this Court, he argues the acting

local administrative judge abused his discretion by denying him leave to file a

petition for mandamus because his petition, had the petition been granted, would

have required the local administrative judge to grant Welsh, a vexatious litigant,

permission to file a petition that allowed Welsh to challenge the ruling the local

administrative judge made on the merits of his unauthorized petition for release on

June 13th. According to Welsh, he initiated the biennial review process by filing an

expert report which he obtained from a nurse practitioner, a report that Welsh argues

created a fact issue about whether he is no longer likely to commit a predatory act

of sexual violence. 8 That report, Welsh argues, triggered the trial court’s duty to


      8We  disagree with Welsh that his petition triggered the biennial review
process under section 841.102 of the Health and Safety Code.
Tex. Health & Safety Code Ann. § 841.102
. That process is based on a biennial examination of the
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conduct a hearing so that a jury could decide whether Welsh is no longer likely to

commit a predatory act of sexual violence. Welsh contends that when the local

administrative judge’s clerk failed to notify him of the local administrative judge’s

ruling denying his request for permission to file a petition for mandamus, the judge

deprived him of his constitutional right to a jury trial, a right guaranteed to all

citizens by Article V, § 10 of the Texas Constitution.

      We disagree with Welsh that the local administrative judge abused his

discretion by denying Welsh permission to file a petition for mandamus. As further

explained below, the local administrative judge could have reasonably found that the

trial court when ruling on Welsh’s unauthorized petition for release didn’t abuse its

discretion by concluding that the nurse practitioner’s report Welsh filed with his

unauthorized petition for release failed to raise an issue of material fact as to whether

Welsh is no longer likely to engage in a predatory act of sexual violence.

      The report Welsh attached to both his unauthorized petition for release and

his petition for mandamus was prepared by a psychiatric nurse practitioner, whom

Welsh retained. The report doesn’t provide any specifics about the nurse

practitioner’s forensic training or experience. Yet the report does state that the nurse

practitioner graduated with PMHNP and CNS-P degrees in 2005. The report notes



sexually violent predator by an expert under contract with the Texas Civil
Commitment Office. Id. § 841.101(a).
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that Welsh was seen for a biennial examination on August 24, 2022, but the report

doesn’t mention who saw Welsh for that exam. The nurse practitioner’s report states

that Welsh was found to be a sexually violent predator, and the report notes that

Welsh was civilly committed in October 2015. The nurse practitioner states she

reviewed Welsh’s current polygraph and a current penile plethysmograph. The

report then states that the nurse practitioner weighed Welsh’s risk and protective

factors. As to the nurse practitioner’s observations, the nurse practitioner’s report

states:

      His thoughts were linear, organized and coherent regarding past
      criminal activities and current state of mind. He claims to be following
      regulations put forth. No auditory hallucinations, visual hallucinations
      or delusions present. He was alert and oriented to person, place, time
      and situation. Mr. Welsh has a good family support system and appears
      genuine in his desire to acclimate into society as a functional individual.
      He states he would like to contribute to helping others through his own
      experience. He has a good fund of knowledge and good vocabulary.
      Although Antisocial traits were clearly present, maturity has changed
      some of these personality issues. Mr. Welsh is not deemed a danger to
      himself or others at this time. Antisocial and Narcissistic personality
      issues remain. Overall, he was cooperative, pleasant and answered
      questions directly, and appeared to be honest.

The entire analysis the nurse practitioner included in her report states:

      Mr. Welsh was considered having a behavior abnormality (a legal term,
      not a medical term) but in my professional opinion, at this point in time
      I can say with a reasonable degree of scientific certainty that the
      examinee’s probability to commit a sexually violent offense has
      decreased. He does not meet the legal standard of having a behavior
      abnormality any longer.


                                          6
      The report fails to mention whether the nurse practitioner had or considered

Welsh’s previous evaluations and examinations, supervision and treatment progress

reports, personal history, criminal history, sex offense history, previous risk

assessments, his progress (or lack thereof) in his civil commitment tiers, or his DSM-

V diagnoses. Even though the report mentions Welsh has antisocial and narcissistic

personality issues and states that Welsh’s “maturity” has changed some of the

personality issues, the report doesn’t state what the issues are or how they have

changed. The report is silent about the methodology the nurse practitioner used and

doesn’t explain whether the methodology that she used is generally accepted or

relied upon by others with expertise in diagnosing the risk of whether a person’s

behavioral abnormality has changed to the extent that the individual is no longer

likely to engage in a predatory act of sexual violence.

      When an expert’s opinion is conclusory, the opinion is considered no

evidence. 9 A conclusory opinion “asserts a conclusion with no basis[,]” offers a

“basis that provides no support for the opinion[,]” or offers only [the expert’s] word

that the bases offered to support the opinion actually exist or support [the]

opinion.”10 Under the Texas Rules of Evidence, an expert’s opinion must be based




      9Schindler Elevator Corp. v.    Ceasar,
670 S.W.3d 577
, 585 (Tex. 2023)
(cleaned up).
      10Id.

                                          7
on sufficient “underlying facts or data.”11 “An expert’s opinion is inadmissible if the

underlying facts or data do not provide a sufficient basis for the opinion.” 12

      The nurse practitioner’s report filed with Welsh’s unauthorized petition for

release contains nothing more than a conclusory opinion given the information that

the report’s author included in the report. In our opinion, a judge evaluating the

report could reasonably conclude the opinions in the report aren’t based on sufficient

underlying facts and data to be admissible under Texas law. Stated another way,

missing facts and data in the report include but are not necessarily limited to

information about Welsh’s previous evaluations and examinations, criminal history,

sex offense history, prior risk assessments, and his DSM-V diagnoses. Importantly,

the report Welsh relied on doesn’t explain how the nurse practitioner reached her

conclusions, and the report doesn’t include an explanation of the methodology that

she used. As a result, judges evaluating the report—the visiting judge of the 435th

District Court in considering the unauthorized petition for release, and the acting

local administrative judge in ruling on Welsh’s petition for mandamus—could have

reasonably concluded the report inadmissible and chosen to give it no weight by

deciding that Welsh failed to meet his burden of proof. See Tex. R. Evid. 705(c).




      11Tex. R. Evid. 705(c).
      12Id.

                                          8
      In the original proceeding Welsh filed here, even were we to assume that less

than 30 days lapsed from the date he received notice of the trial court’s June 13

order—making the petition he filed at least arguably timely—Welsh has not shown

the trial court abused its discretion by finding that his behavioral abnormality has

not changed. 13 That’s because the only evidence Welsh points to as showing his

behavioral abnormality has changed is the report of the nurse practitioner, which he

retained and then attached to his unauthorized petition for release. For the reasons

we explained above, the trial court wasn’t required to give any weight to the report

since it lacks the underlying facts and data to make the opinions the nurse

practitioner expressed admissible under Rule 705(c). 14

      Consequently, even if the court’s clerk failed to timely notify Welsh of the

June 13th ruling on his petition for mandamus, Welsh hasn’t established how

compelling the local administrative judge who signed the order denying Welsh’s

request to compel the visiting judge of the 435th District Court to set a jury trial on

his petition for unauthorized release resulted in any harm when the evidence Welsh

used to support his unauthorized petition for release and his petition for mandamus



      13Tex. Health & Safety Code Ann. § 841.123(c)(1). We note that Welsh titled

his petition “Biennial Review Texas Health and Safety Code 841.145 For Further
Proceedings Under Texas Health and Safety Code 841.201.” However, the petition
was unauthorized and as such is an unauthorized petition for release under section
841.123.
      14Tex. R. Evid. 705(c).

                                       9
hinges on a report containing an opinion that due to a lack of foundational data isn’t

admissible. 15

       After reviewing the mandamus petition and appendix, we conclude the relator

has failed to show that he is entitled to the relief he seeks. Accordingly, we deny the

petition. 16

       PETITION DENIED.

                                                            PER CURIAM

Submitted on December 13, 2023
Opinion Delivered December 14, 2023

Before Horton, Johnson and Wright, JJ.




       15Tex. R. App. P. 52.8(a).
       16Id.

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